A divided Illinois appeals court has determined that Jimmy John’s Enterprises and one of its franchisees must continue to defend four of seven claims in a personal injury suit arising from a motor vehicle accident involving one of its delivery drivers. Reynolds v. Jimmy John’s Enters., LLC, No. 4-12-139 (Ill. App. Ct., 4th Dist., decided April 2, 2013). The plaintiff, who was riding a motorcycle when the accident occurred and purportedly sustained permanently disabling injuries, alleged that the driver was negligently supervised and trained and thus made an illegal turn into his path in an effort to comply with the food company’s promise of “freaky fast” food delivery, that is, that “deliveries will be made within 15 minutes of receiving the sandwich order.”

Finding that the defendants did not properly bring their motion to dismiss under the state’s procedural rules, the court majority found that the trial court erred in granting it as to all claims. Still, because the plaintiff did not argue trial court error on appeal as to the “implied authority,” “joint venture” and “principal/apparent authority” claims in counts V-VII, the court found any challenge to their dismissal forfeited on remand. The claims that remain are negligent training and supervision against both defendants. A dissenting judge would have affirmed, arguing that the court could have considered arguments incorrectly raised in a motion to dismiss by deeming the motion as one for summary judgment.